Constitutional Secularism vs. Western Secularism – Rajeev Bhargava's Framework

The Western Model of Secularism

A. Historical Roots

Western secularism emerged from the specific historical experience of Europe — primarily from the devastation of the Wars of Religion (1524–1648) between Catholics and Protestants. The Peace of Westphalia (1648) established the principle cuius regio, eius religio (whose realm, his religion), which, while not secular in the modern sense, began the process of containing religion within political boundaries.

The Enlightenment (17th–18th centuries) — through philosophers like Locke, Voltaire, Rousseau, and Kant — developed the philosophical case for separating reason and religion, public and private, state and church. The American Revolution (1776) and French Revolution (1789) institutionalised these principles in different ways:

• American Model (1791): The First Amendment to the US Constitution prohibits Congress from making laws 'respecting an establishment of religion, or prohibiting the free exercise thereof.' This creates a 'wall of separation' (Thomas Jefferson's phrase) between church and state, but American public life remains deeply infused with religious symbolism and rhetoric. The US model is 'religion-friendly secularism' — the state does not support or oppose any religion.

• French Model (Laïcité): France adopted a more militant form of secularism, reflecting the revolutionary tradition's hostility to the Catholic Church as an instrument of royal and aristocratic power. The 1905 Law on the Separation of the Churches and the State removed all religious instruction from public schools, prohibited clergy from public office, and nationalised Church property. Laïcité demands that religion be strictly private. The 2004 ban on religious symbols (headscarves, crosses, kippahs) in public schools is an expression of this tradition.

B. Core Features of Western Secularism

Despite variations, Western secular models share certain features:

• Religion-state separation: The state has no official religion; it does not fund, favour, or officially endorse any religious institution or practice.

• Individual religious freedom: Citizens may practise any religion or none — religion is a private matter.

• Neutrality: The state is neutral between religions; it neither promotes nor restricts religious practice.

• Reason vs. Revelation: Public law and policy are derived from human reason, not divine revelation. Religious arguments are not accepted as valid bases for legislation.

C. Limitations of Western Secularism in the Indian Context (Bhargava's Critique)

Rajeev Bhargava argues that Western secularism, despite its virtues, is not a universal model that can be simply transplanted to India. His critique includes:

• Context-specificity: Western secularism was designed to address the problem of a single dominant religion (Christianity) exercising political power. India has no single dominant religion in the same institutional sense; instead, it has a multiplicity of religions, sects, and communities, all with deep social and cultural roots.

• 'Religion-blindness' as a problem: In the West, treating all citizens as religion-free individuals in the public sphere works (imperfectly) because there is a relatively homogeneous cultural backdrop. In India, religion is deeply embedded in social life, caste structure, personal law, and cultural identity. A 'religion-blind' state that refuses to engage with religion would leave existing religious hierarchies and discriminatory practices (caste discrimination justified by religion, gender discrimination in personal law, untouchability) unchallenged.

• Inter-religious equality requires intervention: If the state maintains strict separation and never engages with religion, it cannot reform the caste system (which has religious sanction in traditional Hinduism), cannot outlaw practices like Sati (banned 1829 but justified as religious duty), and cannot legislate against triple talaq (instant divorce). True equality between citizens requires the state to have the power to intervene in religion.

• Majority religion inevitably shapes culture: Even in theoretically secular Western states, the majority religion shapes the cultural calendar (Christmas as a public holiday), architecture, and social norms. A purely 'separation' model cannot address the disadvantage this creates for religious minorities.

Indian Constitutional Secularism

A. Constitutional Provisions

The Indian Constitution does not use the word 'secular' in its original 1950 text — the word was inserted into the Preamble by the 42nd Constitutional Amendment in 1976 during the Emergency. However, the substance of secularism was present in the Constitution from its inception, through a web of interlocking provisions:

• Article 25: Freedom of conscience and free profession, practice, and propagation of religion — subject to public order, morality, and health. The state may legislate for social welfare and reform (Art. 25(2)(b)) and can throw open Hindu religious institutions to all castes.

• Article 26: Right of religious denominations to establish and maintain institutions, manage their own affairs in matters of religion, and own and administer property — subject to public order, morality, and health.

• Article 27: No one shall be compelled to pay taxes for the promotion of any particular religion.

• Article 28: No religious instruction in state-maintained schools; state-aided schools may provide religious instruction but attendance is voluntary.

• Article 29–30: Cultural and educational rights of minorities — minority communities may establish and administer their own educational institutions.

• Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.

• Article 44 (DPSP): The state shall endeavour to secure a Uniform Civil Code — recognising that separate personal laws for different religious communities are a limitation on the secular ideal, but treating this as a directive rather than an absolute right.

Together, these provisions create a complex, textured secularism that is neither strict separation nor state patronage of any single religion.

B. The Principled Distance Framework (Rajeev Bhargava)

Rajeev Bhargava, in his essays collected in Secularism and Its Critics (1998) and The Promise of India's Secular Democracy (2010), develops the concept of principled distance as the core principle of Indian constitutional secularism.

The key features of principled distance:

• Neither separation nor merger: The state is neither religiously neutral (as in American secularism) nor anti-religious (as in radical French laïcité). It acknowledges the importance of religion to citizens' lives and identities.

• Context-sensitive engagement: The state may engage with religion when required by the values of justice, liberty, equality, and fraternity enshrined in the Constitution. It may intervene to reform discriminatory practices within religion; it may support religious communities' educational and cultural institutions without favouring one over another.

• Equally consistent across religions: The principle of engagement must be applied equally to all religions — the state cannot intervene to reform one religion's practices while leaving another's discriminatory practices untouched (this is Bhargava's critique of post-independence 'pseudo-secularism' — Congress governments intervening in Hindu personal law through the Hindu Code Bills while leaving Muslim personal law unreformed for electoral reasons).

• Multiple values, not just separation: Indian secularism is committed to multiple values simultaneously — liberty (individual religious freedom), equality (equal treatment of all religions), fraternity (inter-religious harmony), and constitutional morality. When these values conflict, the state must navigate the conflict through democratic deliberation, not through a single rigid rule.

• Anti-domination: At its core, Indian secularism is designed to prevent any religious community from dominating others, to prevent intra-community domination (e.g., caste hierarchy within Hinduism), and to protect individual members of religious communities from oppressive internal practices.

C. Indian Secularism in Practice — Key Case Studies

The Hindu Code Bills (1955–56)

The Hindu Code Bills — Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Adoptions and Maintenance Act (1956), Hindu Minority and Guardianship Act (1956) — were a landmark exercise of state intervention in Hindu personal law. They standardised and modernised marriage, divorce, inheritance, and adoption laws for Hindus, abolishing polygamy and granting women inheritance rights. This was a direct exercise of the Article 25(2) power — social welfare and reform overriding religious convention. Notably, similar reforms were NOT applied to Muslim, Christian, or Parsi personal law at the time, which Bhargava identifies as an inconsistency in India's practice of principled distance.

Shah Bano Case (1985–86)

The Supreme Court's judgment in Mohd. Ahmed Khan v. Shah Bano Begum (1985) held that a divorced Muslim woman was entitled to maintenance from her husband under Section 125 of the CrPC (a secular criminal law). The court also expressed the view that the Uniform Civil Code was desirable.

The subsequent Parliament's reversal of this judgement through the Muslim Women (Protection of Rights on Divorce) Act 1986 — exempting Muslim women from Section 125 — was widely criticised as appeasement of conservative Muslim clergy for electoral purposes. Critics argued this was a violation of principled distance: the state was shielding a discriminatory religious practice from secular law for political reasons, not principled ones.

Triple Talaq — Muslim Women (Protection of Rights on Marriage) Act 2019

The Supreme Court's five-judge bench in Shayara Bano v. Union of India (2017) struck down instant triple talaq (talaq-e-biddat) as unconstitutional — a 3:2 majority held it violated the right to equality and dignity under Articles 14 and 21. The government subsequently enacted the Muslim Women (Protection of Rights on Marriage) Act 2019, criminalising instant triple talaq.

From Bhargava's framework, this is an exercise of principled distance — the state intervened in a Muslim religious practice on the grounds of gender justice and constitutional equality, using the same justification (social welfare and reform) that it used to reform Hindu personal law through the Hindu Code Bills. Critics, however, argued that criminalisation (as opposed to civil remedies) was disproportionate and politically motivated.

SR Bommai Case (1994) — Secularism as Basic Structure

In SR Bommai v. Union of India (1994), the Supreme Court declared that secularism is a part of the 'Basic Structure' of the Constitution — it cannot be amended away by any Parliament. The case arose from the dismissal of state governments in Madhya Pradesh, Rajasthan, and Himachal Pradesh after the Babri Masjid demolition on the grounds that these governments had failed to protect secularism. The court held that a state government that pursues anti-secular policies is liable to be dismissed under Article 356 (President's Rule).

D. The Uniform Civil Code Debate

Article 44 directs the state to work toward a Uniform Civil Code (UCC) — a single set of civil laws (governing marriage, divorce, inheritance, adoption) for all citizens regardless of religion. The UCC remains deeply contested:

• Secularist arguments for UCC: A common civil code is necessary for true equality of citizenship; separate personal laws based on religion institutionalise communal identity within the legal system; gender justice requires uniform protection for women of all religions.

• Minority rights arguments against UCC: Articles 25–30 protect the right of religious minorities to manage their own affairs; imposing a uniform code is an act of cultural assimilation, not inclusion; the majority community's personal law should also be reformed first.

• Bhargava's position: A UCC is the ideal, but its implementation must be done through democratic dialogue and must address gender injustice within all religious personal laws simultaneously — not as an instrument to target any one community.

• Recent development: The Uttarakhand Uniform Civil Code Act 2024 — the first state-level UCC in independent India — has been contested both for its progressive elements and for its potential impact on tribal customary laws (which are explicitly exempted).

Principled Distance: Rajeev Bhargava's concept — the Indian state maintains a context-sensitive, value-based relationship with religion: neither strict separation nor merger, but engagement governed by the principles of justice, equality, and constitutional morality.

Laïcité: French model of strict secularism — religion is entirely private; the state is actively irreligious in the public sphere.

Basic Structure Doctrine: Constitutional doctrine (Kesavananda Bharati, 1973) holding that Parliament cannot amend the 'basic structure' of the Constitution; secularism was declared part of basic structure in SR Bommai (1994).

Personal Law: Religious community-specific laws governing marriage, divorce, inheritance, and adoption. India has separate personal laws for Hindus, Muslims, Christians, and Parsis.

Uniform Civil Code (Article 44): DPSP directing the state to secure a common civil code for all citizens — the most contested site of the secularism debate.

Anti-domination Secularism: Bhargava's characterisation of Indian secularism's deepest purpose — preventing religious, caste, and inter-community domination; not merely managing a church-state relationship.

• Uttarakhand UCC (2024): The first state-level UCC in India — a significant development in the decades-long debate.

• Places of Worship Act 1991: Prohibits changing the religious character of places of worship as they existed on August 15, 1947 (Babri Masjid excluded). Recent legal challenges to this Act test India's secular commitment.

• National Register of Citizens (NRC) and CAA: The combined effect of NRC and CAA (2019), critics argue, creates a framework where religion determines citizenship — fundamentally undermining Indian secularism.

• Hijab Ban controversy (Karnataka, 2022): The Karnataka HC's ruling (upheld by some and contested by others) on the prohibition of hijab in educational institutions tested the boundaries of religious freedom vs. institutional uniform rules — echoing French laïcité debates.

• Supreme Court on secularism: Ongoing litigation on temple control (e.g., government control of Hindu temples vs. autonomy for mosques and churches) tests the principle of equal treatment across religions.